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Harvard Climate Justice Coalition v. President and Fellows of Harvard College

Superior Court of Massachusetts, Suffolk

March 17, 2015

Harvard Climate Justice Coalition et al. [1]
v.
President and Fellows of Harvard College (" Harvard Corporation") et al. [2] No. 129827

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTIONS TO DISMISS

Paul D. Wilson, Justice of the Superior Court.

Plaintiffs, students at Harvard University, bring this lawsuit to challenge the manner in which the University is investing its considerable endowment. Harvard, however, says that the real issue here concerns not where Harvard should invest, but rather which members of the Harvard community should make its investment decisions. The Attorney General of the Commonwealth of Massachusetts, also a Defendant, asserts that this case is really about who has the power to challenge a charitable organization's decisions about the investment of its funds.

Both Harvard and the Attorney General have moved to dismiss the students' lawsuit. After reviewing the Complaint and the extensive written materials submitted by the parties, and hearing oral argument, I will allow both motions to dismiss, because standing to bring a lawsuit " is not measured by the intensity of the litigant's interest or the fervor of his advocacy." Enos v. Sec'y of Envtl. Affairs , 432 Mass. 132, 135, 731 N.E.2d 525 (2000) (internal citations omitted).

Background

Plaintiffs are seven undergraduate, graduate and law students at Harvard University, along with an unincorporated association to which they and other students belong. Also named as a plaintiff is " Future Generations." [3] Plaintiffs believe that the use of fossil fuels is contributing to the problem of climate change, which they see as the most serious current threat to their own well-being, to future generations, and to the planet itself. Therefore Plaintiffs want Harvard to divest itself of investments in fossil fuel companies.

To that end, Plaintiffs brought this lawsuit, seeking a permanent injunction requiring that Harvard immediately sell off its direct holdings in fossil fuel companies, and begin divesting itself of its indirect holdings in those companies. Plaintiffs have named as Defendants the University (under its formal name, President and Fellows of Harvard College) and Harvard Management Company, which manages the University's endowment.[4] Because this lawsuit concerns investment decisions of a charitable corporation, an area regulated by the Attorney General, Plaintiffs have joined the Attorney General as a defendant, as required by G.L.c. 12, § 8G.

In deciding these motions to dismiss, I must deem all allegations in the Complaint to be true, Iannacchino v. Ford Motor Co. , 451 Mass. 623, 636, 888 N.E.2d 879 (2008), and I must consider those allegations generously and in Plaintiffs' favor. Vranos v. Skinner , 77 Mass.App.Ct. 280, 287, 930 N.E.2d 156 (2010). Those allegations, in brief, are as follows.

The Complaint first alleges, in detail and at length, that the burning of fossil fuels results in the emission of greenhouse gases that is causing physical changes to the Earth's ecosystems, resulting in deleterious geopolitical, economic and social consequences. The Complaint further alleges that Harvard directly owns stocks in publicly traded fossil fuel companies worth at least $79 million, and indirectly owns additional shares in such companies.

The Complaint notes that the Charter of the Harvard Corporation imposes obligations on the University's President and Fellows to, among other things, advance the education of youth, and promote " the advancement of all good literature, arts, and sciences in Harvard College." Investment in fossil fuel companies, according to the Complaint, is at odds with these obligations, and harms Plaintiffs because that investment directly supports climate change denial by fossil fuel companies, which interferes with Plaintiffs' attempts to educate other students on the facts of climate change and to promote a safe transition to a healthy and secure energy future. Those fossil fuel investments also have a chilling effect on academic freedom, among other things by impeding Plaintiffs' ability to associate with like-minded colleagues and to avail themselves of the open scholarly environment that Harvard has a duty to maintain. Plaintiffs also allege " diminishment" of their educations because fossil fuel companies' promotion of scientific falsehoods, funded by Harvard, impedes Plaintiffs in preparing for their intended careers, in, among other areas, environmental law, renewable energy science, and organic farming.

The Complaint also notes that the Charter obligates the University's President and Fellows to maintain the University's physical campus. Harvard's investment in fossil fuel companies is at odds with that obligation, because even under optimistic scenarios, the Complaint alleges, parts of the Harvard campus near the Charles River will be flooded every two to three years by 2050 as a result of climate change.

The Complaint points out that Harvard has divested from companies whose activities ran counter to the University's educational mission in the past. The Complaint alleges that a broad array of Harvard alumni and faculty, as well as political leaders and scientists, have called upon the University to sell its investments in fossil fuel companies.

From these allegations, Plaintiffs construct a two-count complaint. First, Plaintiffs accuse Harvard of mismanagement of charitable funds. Second, Plaintiffs assert the right of " Future Generations" to be free of what the Plaintiffs call " Intentional Investment in Abnormally Dangerous Activities."

ANALYSIS

In deciding these motions to dismiss, I must accept as true " all facts pleaded by the nonmoving party, " Jarosz v. Palmer , 436 Mass. 526, 529, 766 N.E.2d 482 (2002) (citation omitted), in this case Plaintiffs. I also must accept as true " such inferences as may be drawn [from those facts] in the [nonmoving party's] favor." Blank v. Chelmsford Ob/Gyn, P.C. , 420 Mass. 404, 407, 649 N.E.2d 1102 (1995). This deference to the nonmoving party's statement of the claim is not unbounded, however, because I must " look beyond the conclusory allegations in the complaint, " Curtis v. Herb Chambers I-95, Inc. , 458 Mass. 674, 675, 940 N.E.2d 413 (2011), and determine if the nonmoving party has pled " factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief, " which " must be enough to raise a right to relief above the speculative ...


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